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Law, Social Justice & Global Development
(An Electronic Law Journal)
An Assessment of Right to Elementary Education for a Girl Child
in India: A Review of International and National Law
Ashish Virk*
Lecturer-in-Law
[email protected]
Aman A. Cheema*
Senior Lecturer-in-Law
[email protected]
University Institute of Laws,
Panjab University Regional Centre
This is a refereed article published on: 21st May 2010
Citation:
Citation: Virk, A. & Cheema, A.A., I. ‘An Assessment of Right to Elementary Education for
a Girl Child in India: A Review of International and National Law’, 2010 (2) Law, Social
Justice & Global Development Journal (LGD).
http://www.go.warwick.ac.uk/elj/lgd/2010_2/virk_cheema
Virk, A. & Cheema, A.A.
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Right to elementary education
ABSTRACT
Gender inequality in education is one important aspect of educational disparity, an issue
which was addressed by the feminist movement. As a result of this movement and other
developments, there has been a growing recognition in international law of the right of the
girl child to education. The underlying approach of this article is the extent to which these
developments have been replicated in India. At one level, the Constitution promised universal
education for all children under 14 years of age. More recently, this has been supplemented
by the 86thAmendment of 2002 of the Constitution and The Right of Children to Free and
Compulsory Education Act, 2009. Nevertheless, the article also suggests that various factors
including role of judiciary appears to ensure that there is unsatisfactory fulfilment of the right
to education of the girl child in relation to elementary education.
KEYWORDS
Elementary Education, Fundamental Right, Feminism, Indian Constitution, International
Law.
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1. FEMINIST STRUGGLE FOR EDUCATION: AN INTERNATIONAL LACONIC OF THE PAST
Jean Jacques Rousseau, the political scientist and preacher of ‘Social Contract Theory’,
while commenting on feminism and female education said, ‘Educate women like men,
and the more they resemble our sex the less power will they have over us.’
On this Mary Wollstonecraft, a feminist replied ‘I do not wish them to have power over men,
but over themselves.’
Education is a human right with immense power to transform. On its foundation rest the
cornerstone of freedom, democracy, and sustainable human development. Education is
desired, as it opens up a vast world of opportunities and ideas to the educated person. It is
also of great instrumental value in the process of economic growth and development.
Education plays a critical role in demographic transition, female education, in particular, is
seen as important in the process of economic growth and development (Bajpai, 2006:
332).1The right to become educated has been long sought after by women. The history of
women’s education parallels the beginning of feminism. Women have made huge strides
towards receiving an equal education, but there is still much more to be done. Education has
been the stumbling block keeping women from attaining equal status in society, separating
them from their male counterparts. It has also been the door to the elusive dream of equality.
Before women gained the right of education, they were perceived as low-class citizens, not
worthy of voting or owning property, or any number of other inalienable rights. However,
many believed that they should not hold the power to influence politics or even make
decisions about their own property. Women were stripped off their dignity and privileges by
men of the community and even by their own husbands. They were finally able to break free
from these social constraints through education. It is often observed that most of the early
feminists were set apart from their fellow ones by education. They were educated and
through this knowledge gained a sense of self-worth and the power to change history.
The struggle for women’s education has been an uphill battle that has not yet reached its end.
The journey took root in the Victorian Era and continues to be a source of struggle even in
modern times. During the mid-eighteen century, hundreds of women were expected to live
against feminine ideas. This common ideology, required women to be ‘pure, pious, domestic
and submissive.’ It was believed that none of these ideals would be achieved through
education. In fact, receiving an education in the Victorian Period was considered an ‘act of
nonconformity.’ A woman could not fill her preordained place in society if she was wasting
her time gaining knowledge. Education was thought to make women discontented with their
current status, and possibly even irritated with men. Education for women was thought firstly,
to disrupt the social balance of the time and secondly, educated women risked brain fever or
sterility. The earliest push for Victorian women to become educated was because they were
mothers of men and eventually teachers of men. It was not until the twentieth century that
women began to desire knowledge for themselves as individuals (Women’s Issues: Then &
Now, 9July, 2007).2
In The Vindication of the Rights of Women, 1793,now considered a classical work of feminist
history, Mary Wollstonecraft, (Britannica, 2004: 196)3argued primarily for the right of
women to be educated. She believed that it is through education that emancipation would
come. In defending this right, Mary Wollstonecraft, accepts the definition of her time that
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women’s sphere is the home, as she doesn’t isolate the home from public life as many others
did. For her the public life and domestic life are not separate, but connected. She also argues
that educating women will strengthen the marriage relationship. A stable marriage is a
partnership between a husband and a wife, a marriage is a social contract between two
individuals. However, Rousseau, the defender of personal rights, did not believe that such
individual liberty was for women. Woman, for Rousseau, was incapable of reason, and only
man could be trusted to exercise thought and reason. Thus, for Rousseau, women could not
be citizens, only men could. Mary Wollstonecraft was a critique of Rousseau as she argued
that bringing together feeling and thought, rather than separating them and dividing them, one
for women and the one for man, was not a socially correct theory (Lewis, 9 July, 2007).4
During the time of the ideal subservient woman, a few bold women and events internationally
stand out as milestones in history. The first is in 1833, when Oberlin College was founded. It
was the first university to accept women and black students. The other important event was
the Seneca Falls Convention, July 19-20 1848(Britannica, 2004: 15).5The Declaration has
been called the single most important document of the nineteenth century American women’s
movement. Appearing in additional to issues of suffrage was education and employment.
Elizabeth Blackwell, a citizen of the UK, became the first woman in USA to graduate in
medicine in 1849 (Britannica, 2004: 24).6In 1877, Helen Magill became the first woman in
the USA to earn her PhD. (Women’s Issues Than & Now, 9 July, 2007).7There are many
other events along the path to education that helped women to achieve the status they enjoy
today. However, obtaining education remained largely a privilege rather than a right, till mid
twentieth century. The above brief chronology merely traces a few of the hundreds of
thousands of victories women had to win in order to become educated. The next part of the
article will discuss the role of United Nations in the development of international legal
provisions granting and safeguarding the educational rights of women.
2. INTERNATIONAL LAW ON FEMALE EDUCATION UNDER THE UNITED NATIONS
‘Investing in girls’ education delivers well-known returns.
When girls' are educated, they are more likely to earn higher wages and obtain better jobs,
to have fewer and healthier children and to enjoy safer childbirth.’
United Nations Secretary-General Ban Ki-moon
2.1 GENERAL OVERVIEW
Over the past six decades, different modes of interpretations and meaning on the idea of
gender equality, a value reflected in the UN Charter, have emerged. A new constituency in
UN politics called ‘women’ was created and the entry of a powerfully endorsed idea called
‘women’ in UN thought. The quest for what equality actually means for women has never
ceased both within and outside the UN system. As the institutional focus and composition of
the UN evolved over the decades, and as the themes, slogans and formulae for realizing the
organization’s goals changed and expanded, women worked to ensure that the idea of
overcoming inequality was recognized in all these transformations. Women’s participation
with the UN’s work in development basically questioned and changed the foundations of its
knowledge base, especially as regards its practice. Education as a human right was always on
the agenda of the UN8; however, the international body targeted the issue of female illiteracy
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exclusively. In 1949, the UN sent questionnaires to thirty-two countries concerning
opportunities for women in education and the professions. It also launched a complementary
study on the extent to which these opportunities were actively realized in the field of
women’s education. The study aimed to establish the nature and causes of the obstacles that
hindered full equality of educational opportunities for women.
Although statistics were collected from member countries, the UN used non-governmental
and inter-governmental organizations to obtain qualitative information. It set up a committee
of experts that consisted of mostly women educationists and social workers, including
representatives from the Inter-American Commission of Womenand the Muslim-Arab League.
According to the Committee of Experts of the United Nation’s Educational Scientific and
Cultural Organisation (UNESCO),
‘[I]f women do not possess the same educational facilities as men, it is not for any
psychological or pedagogical reason that could justify the existing qualitative and
quantitative difference between the opportunities offered to boys and girls. The only
established differences in intellectual aptitudes are differences between individuals
and not differences between sexes’ (Jain, 2006: 31).9
The above initiative was the first step by this international organization, after similar attempts
undertaken by the League of Nations towards the education of women.10This was favoured
by the various conventions, declarations etc; both at international and regional levels, for
taking effective steps for imparting education to women. Some of these provisions under
various documents are discussed below. The scope of education is quite vast and so the
proceeding parts of this article will mainly deal with elementary education11of the girl child
internationally as well as nationally.
2.2 CONVENTION AGAINST DISCRIMINATION IN EDUCATION, 1960
This Convention was the result of eleventh session of UNESCO in Paris from 14thNovember
to 15thDecember, 1960. The Convention’s Article 1 provides that the State can establish or
maintain separate educational systems or institutions for pupils of the two sexes, only if their
educational systems or institutions offer equivalent access to education. Under Article 4, an
obligation is imposed on State parties to promote and develop a national policy with the
capacity to provide equality of opportunity and to make at least primary education free and
compulsory.
2.3 CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN,
1979
The Convention reaffirms the faith in fundamental human rights, in dignity and worth of the
human beings and in the equal rights of men and women.Article 10 provides that the state
parties shall take all appropriate measures to eliminate discrimination against women in order
to ensure to them equal rights with men in the field of education. The article also states that
state parties shall work towards the reduction of female student drop-out rates and the
organization of programmes for girls and women who have left school prematurely.
2.4 UN DECADE FOR WOMEN (1976-85)
2.4.1 The 1stInternational Women’s Year Conference, 1975
The first world conference on the status of women targeted full gender equality and the
elimination of gender discrimination in all areas including education of women. The long
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term plans were for the compulsory elementary education for girls. (1stWorld Conference on
Women 1975; 11 August, 2007).12
2.4.2 The 2ndInternational Women’s Year Conference, 1980
It discussed the lack of awareness among women about the opportunities available to them,
one of the factors that led to this kind of discrepancy. It also made a passing reference to
educational rights of the women. (2ndWorld Conference on Women, 1980; 11 August 07).13
2.4.3 The 3rdInternational Women’s Year Conference, 1985
Also known as the Nairobi Conference ended with the Lagos Plan of Action which added a
new chapter ‘women and development’. It was a detailed blueprint of women’s economic
empowerment, calling for education of women to prepare them for employment in business,
commerce, industry and handicrafts, and small scale industries.
2.4.4 The 4thInternational Women’s Year Conference, Beijing Declaration, 1995
The declaration elaborately discussed gender discrimination in the field of education.
Equality of access to and attainment of educational qualifications is necessary if more women
are to become agents of change. On the regional level, girls and boys have achieved equal
access to primary education except in some parts of Africa and Central Asia, where access to
education facilities is still inadequate. The strategic objectives14for the governments were to
ensure equal access to education.
Apart from it the Beijing Declaration, held that literacy of women is an important key for
improving health, nutrition and education in the family and to empower women to participate
in decision making in society. Investing in formal and non-formal education and training for
girls and women, with its exceptionally high social and economic return, had proved to be
one of the best means of achieving, sustainable development, and economic growth that is
both sustained and sustainable (Jain, 2006: 75-80).15
2.5 WORLD DECLARATION ON EDUCATION FOR ALL
The necessity to redress this neglect, which is that formally recognized equal rights do not
change unequal access to education, was acknowledged in this declaration. It was held that
the most urgent priority is to ensure access to and improve the quality of education for girls
and women and to remove every obstacle that hampers their active participation. Numerous
measures are necessary to make equal access to education for girls effective for which certain
guidance was provided by UNICEF.16A conscientious decision at all levels needs to be made,
to have the maximum number of girls enrolled and educated in the given project area
(Chatterjee, 2005: 215-16).17
The impact of feminist struggle for education and the contribution made by United Nations in
this field was quite encouraging. India as a founding member of the UN could not have
remained untouched by these international developments, and so the attainment of
independence marked a watershed in the history of women’s education in India. The
proceeding part of this article will deal with the expansion of women education in post
independence era.
3. LEGAL ESCALATION OF EDUCATION IN INDIA: AN APPRAISAL OF DERELICT QUARTER OF THE
GIRL CHILD’S RIGHT TO EDUCATION
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‘A world where all girls and boys are empowered through quality education to realize their
full potential
and contribute to transforming societies where gender equality becomes a reality.’
UNGEI Global Advisory Committee in Kathmandu, Nepal.
3.1 GENERAL PERSPECTIVES
The idea of treating women as equal and providing social justice was reflected in the Indian
Constitution which guaranteed equality to everyone. The Constitution makes certain
provisions for the advancement and empowerment of women whereby the State can
discriminate in favour of women against men but it cannot discriminate in favour of men
against women.18Moreover, the special status given to women and children under Article
15(3) is wide enough to cover the entire range of State activity. Article 15(3) is a special
provision in the nature of a proviso qualifying the general guarantees contained in Articles
14, 15(1), 15(2), 16(1) and 16(2), which safeguard the interests of women in India (Jain,
2006: 907).19However, gender inequality in education is one important aspect of educational
disparity. As far back as more than 60 years ago, the Constitution of India promised to
provide universal education to all children up to the age of 14 years. The goal was to be
achieved by 1980. While considerable progress has been made in this regard in the decade of
the 1990s, much still remains to be done for girl’s education. Enrolment rates at the primary
level have risen considerably but many of the girl students, who enroll, drop out and only a
very small number manage to get beyond the primary stage. The table below depicts the
condition of female literacy in India since independence. The comparative data of males and
females reveals the literacy gap between them in the Indian society.
Comparison between Male-Female Literacy Rates
Census Year
Females
Males
Persons
Male-Female Gap in Literacy Rate
1951
8.86
27.16
18.33
18.30
1961
12.97
34.44
24.02
21.49
1971
18.70
39.45
29.45
20.75
1981
20.76
56.38
42.51
26.62
1991
30.29
64.13
52.21
24.84
2001
54.16
75.85
65.38
21.69
Source: Census of India, 1951 to 2001.
The rise of primary education has been a spatial spread, an increase in infrastructure facilities,
and wider coverage of children and increased availability of primary schools. Nevertheless
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the national goal of primary education for all children continues to be elusive. Three factors
have been commonly acknowledged to be important obstacles to universal primary education
in India. Firstly, the problem of poverty. Secondly, low quality of schooling and school
infrastructure. Thirdly, lack of motivation among parents and children. Thus, the Indian
population is characterized by a low overall rate of literacy. There are however, wide
variations across regions, states, castes, classes and sexes (Bajpai, 2006: 332).20
More recently, the National Sample Survey Organisation (NSSO) issued a press note on 19
May, 2010 on its Report No. 532, entitled ‘ Education in India, 2007-2008: Participation and
Expenditure.’21 According to the Report the following is the literacy rate among rural and
urban males and females in India. The table below depicts the literacy and completed
educational level of the population in the country.
Literacy and Completed Educational Level
Age Group
Literacy rate (%)
Rural
Urban
Rural & Urban
Female
Male
Total Female
Male Total
Female
Male
Total
All ages (age 0
& above)
51.1
68.4
60.0
71.6
82.2
77.1
56.3
72.1
64.5
Age 7 & above
56.7
77.0
67.0
78.1
89.9
84.3
62.3
80.5
71.7
Age 15 & above
47.5
71.8
59.7
74.6
88.7
82.0
54.9
76.7
66.0
Source: National Sample Survey Organisation, 2007-2008.
Literacy rate for population of age seven and above in major states are: States with relatively
high literacy Kerala (94%), Delhi (85%), Assam (84%), Maharashtra (81%), Himachal
Pradesh and Tamil Nadu (80% each), Punjab and West Bengal (76% each).
States with relatively low literacy are: Bihar (58%), Rajasthan (62%), Andhra Pradesh
(64%), Jharkhand (65%), Uttar Pradesh (66%) and Jammu & Kashmir and Orissa (68%
each).
Percentage distribution of persons of age 15 & above by completed level of education: 34%
were not literate, 24% were literates of level up to primary, 16% of level middle and
remaining 26% were of level secondary & above.
Hence, it can be said that universal primary education was the agenda on the Indian
Constitution; however, the policies made thereafter did not get success to reduce the gender
gap in the field of education. Likewise, Constitution, the Indian Judiciary too played an
important role in making right to education a reality. Some of the important judgements given
by Supreme Court and various High Courts interpreting education and its related fields are
briefly discussed in the next part of the paper.
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3.2 INTERPRETATIONS ON EDUCATION BY INDIAN JUDICIARY
Before the Constitution (86th Amendment) Act, 2002, the right to education was prescribed
by Articles 45 and 46 of the Constitution. Although both of these are Directive Principles of
State Policy,22 yet the courts have interpreted the right to education as a fundamental right by
incorporating it within the fundamental rights under Article 21. The trend has been to hold
that the right to life under Article 21 and the dignity of the individual cannot be assured
unless it is accompanied by the right to education and that the provisions in Part III and IV of
the Constitution are supplementary and complementary to each other. Some of the important
observations made by the Supreme Court on India on the issue of fundamental right to
education in various judgements are briefly discussed below.
3.2.1 International Law and Indian Constitution on Fundamental Rights
Fundamental rights (also called human rights or basic rights) are of two kinds; the classical
rights and the economic (and social) rights. In the Universal Declaration of Human Rights,
1948, no difference was made between these two kinds of rights. All of them were regarded
as equally fundamental rights. The distinction was later made between political and civil
rights, on the one hand, and economic and social rights on the other hand, in the human rights
covenants primarily because the former were more easily enforceable than the latter. In the
initial drafting of the Constitution of India the rights embodied in Part III and Part IV of the
Constitution were all listed as fundamental rights. Later they were divided into two for the
same reasons. However, once the State take action by Legislation or other wise to make the
right to education available to every eligible person, the statutory right or statutory facility
should stand in practice (if not in theory) on the footing of a fundamental right. The Court
quotes both the covenants23 and compares them with Part III and Part IV of the Indian
Constitution.24
3.2.2 Directive Principles of State Policy and Fundamental Rights
The court held that the Directive Principles which are fundamental in the governance of the
country cannot be isolated from the fundamental rights guaranteed under Part III of the Indian
Constitution. These principles have to be read along with the fundamental rights. Both are
supplementary and complementary to each other. The State is under a Constitutional mandate
to create conditions in which the fundamental rights guaranteed to the individuals under Part
III could be enjoyed by all. Without making right to education a reality the fundamental
rights under Chapter III shall remain beyond the reach of large majority which is illiterate.25
3.2.3 Meaning of Education
Education is both the development of the mind and personality of the individual and his/her
development as a useful member of the society. If education had consisted only of the former,
then there would have been no need for schools, colleges and universities. Every person
would educate himself by self study or correspondence without educating bodies. But this
would not fulfill the other equally important aspect of education, namely, the social element.
One of the primary social functions of education is to prepare the individual to participate in
the democratic process which is the very life of the nation.26
Further, while describing the meaning of education it was held by the Supreme Court of India
that education is the continuous growth of personality, steady development of character, and
the qualitative improvement of life. A trained mind has the capacity to draw spiritual
nourishment from every experience, be it defeat or victory, sorrow or joy. Education is
training of the mind and not stuffing the brain. We want that education by which the
character is formed, strength of mind is increased, the intellect is expanded, and by which one
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can stand on one’s own feet. The end of all education, all training should be towards the
complete making of the human person. The end and aim of all training is to make the humans
to grow. The training by which the current and expression of will are brought under control
and become fruitful is called education. In short, education is national wealth, essential for
the nation’s progress and prosperity.27
3.2.4 Need for Right to Education
Justice Kuldeep Singh said that education is the bottom-line of all other rights incorporated in
various parts of the Constitution. The right to freedom of speech and expression and other
rights cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of
his/her individualistic dignity.28
3.2.5 Right to Education and Constitution
The Indian Constitution highlighted the importance of education through three modes.
Firstly, the framers of the Constitution made it obligatory for the State to provide education
for its citizens. Secondly, the objectives set forth in the Preamble of the Constitution cannot
be achieved unless education is provided to the citizens of this country. Thirdly, the Preamble
also assures dignity of the individual. Without education dignity of the individual cannot be
assured.29
3.2.6 Right to Education under Article 21 of Constitution
The world ‘life’ in Article 21 of the Constitution does not simply mean physical life, but also
covers other expressions of life. It is something more than a mere biological existence of a
human body. Life also includes education, personality, and whatever is reasonably required
to give an expression to life, its fulfillment, and its achievements. The education seeks to
build up the personality of the pupil by assisting his physical, intellectual, moral, and
emotional development.30 Citizens have a fundamental right to education. The right flows
from Article 21. This right is, however, not an absolute right. Its content and parameters have
to be determined in the light of Articles 41 and 45. The right to free education is guaranteed
till 14 years, thereafter; his right to education is subject to the limits of economic capacity and
development of the State.31
3.2.7 Accountability of the State for Providing Right to Education
Today, education is perhaps the most important function of State and Local Governments.
Compulsory school attendance laws and the great expenditures for education both
demonstrate our recognition of the importance of education to our democratic society. It is
required in the performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is a principal instrument
in awakening the child to cultural values, in preparing him for later professional training, and
in helping him to adjust normally to his environment.32
Right to education is also a fundamental right guaranteed under Article 21 of the Constitution
unless the economic capacity and development of the State prohibits enforcement of the
same. In the absence of any material placed before the court as to the economic incapacity of
State, the petitioners have fundamental right to education. Imparting education is a public
duty imposed by the Constitution and hence, it can be enforced by the writ of mandamus.33
With a view to convert the equality of women from de jureto de factofemale education plays
an important role. The Judiciary has no doubt given landmark judgements for making right to
education a reality, but it had failed to address the issue of female education exclusively. In
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spite of the Constitutional provisions nothing much is done by the Government of India and
the Judiciary for the women and their development. As A.S Anand notes,
‘Out of every 20 people in the world 3 are Indians, out of those 3, one is illiterate, and
out of 10 illiterates in India, 6 are girls. Even at the stage of enrolment of girls and
boys in school there is a growing gap of 21.7% points. There is also a high drop-out
rate among girl students as compared to boys at various levels. Articles 14 and 15 of
the constitution are violated in the case of girls with impunity. Studies have shown
that failure to educate a girl child has a negative impact on infant mortality, maternal
mortality, health, and hygiene(Anand, 2008: 9).’34
There have been some legislative developments made in the field of education, that
complement the courts’ intervention in making the right to education a fundamental right. A
critical assessment of these developments follows.
3.3 THE 86THAMENDMENT ACT, 2002
The President of India appointed a National Commission to review the working of the
Constitution in February, 2000. The Commission worked for two years and submitted its
report in March, 2002 (Pillai, 2006: 137).35 When the Constitutional Review Committee
submitted its Report, the 2002 Constitutional Amendment on making education a
fundamental right, was being discussed. Taking note of the fact that the proposed amendment
covered education only between ages six to fourteen, the Review Committee proposed under
its recommendation number 30-C, that every child shall have the right to free education until
he reaches the age of fourteen years; and in the case of girls and members of the scheduled
castes and the scheduled tribes, until they reach the age of eighteen years. The subject of free
and compulsory education was also dealt by the Law Commission of India in its 165th Report.
The report proposed the Free and Compulsory Education for Children Bill, 1998 (Reports of
Law Commission of India, 2007: 165.44-165.48).36
However, it was on 13th December, 2002, that the Constitution (86th Amendment) Act,
2002,37 came into force, which made primary education a fundamental right through the
inclusion of a new Article 21-A. The reason behind the amendment was that the goal of
Article 45 was not achieved by the country even after many years of independence, even
though the task of providing education to all children in this age group gained momentum
after the National Policy of Education (NPE) was announced in 1986. The Government of
India, in partnership with the State Governments, have made strenuous efforts to fulfill this
mandate and, though significant improvements were seen through various educational
indicators, the ultimate goal of providing universal and quality education still remains
unfulfilled. In order to fulfill this goal, it was felt that an explicit provision should be made in
the part relating to Fundamental Rights of the Constitution. The amendment made in the
Constitution to seek the goal of independence, that is, fundamental right to education, though
it is considered just an eyewash by some sections of society. The 2002 Amendment Act does
not justify the recommendations of the Law Commission of India and the Constitutional
Review Committee. The main recommendations provided by Constitution Review
Committee have been totally ignored and hence, the right to education incorporated in Part III
of the Indian Constitution gave no special attention to the girl child.
3.4 THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009
Also known as Right to Education Act, 2009, this legislation seeks to make education a
fundamental right of every child in the age group of six to fourteen years of age. The Act is a
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vigorous initiative taken by the Central Government of India towards achieving the goal of
‘Education for All.’ However, there are several fault lines in the Right to Education Act.
Some of these are discussed below.
Firstly, the Act contradicts India’s commitment on the International Jomtien Conference,
1990, and Supreme Court judgment,38acknowledging the development of early childhood
care and development activities. The provision of the Act makes education free and
compulsory for age group six to fourteen years only and ignores children before the age of six
years. This is a direction given to State under Article 45 of Directive Principles of State
Policy.
Secondly, India has signed and ratified various international declarations and conventions
like The Convention on the Rights of the Child, 1989, which provides the right of a child,
including the girl child, to education and makes provisions to enhance their literacy level. The
newly enacted law on free and compulsory education is silent on the issue of basic
elementary education to this section of society. The recommendations provided by the
Constitution Review Committee have also been totally ignored. The Committee suggested
free and compulsory education till the age of eighteen years for girls.
Thirdly, the conventional view of illiteracy is that it is closely linked with poverty, which is
true especially in developing countries like India. The definition of ‘ free education,’ which
was incorporated in the Bill,39is not a part of the Act as passed. The hidden charges of
education are again a big barrier to female education. The Indian National Sample Survey
Organization (NSSO) clearly reveals the average expenditure per student pursuing primary
education in rural India; expenditure of some of the states are, State of Nagaland Rs.1210/per student, Punjab Rs.890/-, Chandigarh Rs.635/- etc (Chandrasekhar, 2006; 3797-3804).40
Fourthly, the act is silent on the issue of literacy gap between boys and girls. It also fails to
address the problem of drop-out among the girl students. Moreover, the act gives no
incentives to encourage female education like flexible school timings, free transportation,
special governmental schemes and scholarships etc., for girl child. Various studies show that
these are considered to be major barriers in female education in India.
Fifthly, physical insecurity of girls in schools is a common complaint made by parents, which
discourage them to send their daughters to school. To put a check on this problem there is a
need to recruit more qualified female teachers in school. This crucial subject is also not
addressed by the act.
The crucial issue of female’s elementary education is not a matter at the forefront of strategic
thinking for Indian policy makers, and hence the country is not able to achieve the target of
universal education. The national law on education, 2009, and the various state laws and their
provisions are also not very much embattled towards female illiteracy. There is hardly any
clause which gives special attention to female education in the country. The role of Indian
Judiciary on girl child’s education has also not been much encouraging. Various judgements
on education discussed reveal this hard fact. The Indian Judiciary is completely silent on the
subject. No guidelines have ever been given by the judiciary for female education. Looking at
the gravity of the problem it is sad to perceive that both the Indian Legislature and the Indian
Judiciary failed to concentrate on the subject of female illiteracy and work for imparting
education equally for both the sexes in the country. The subject of female education needs
attention from all state agencies as dismal state of education is increasing the problem of
illiteracy and other crimes against women, like early marriages, dowry demands, honour
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killing etc. Illiteracy among the female folk is one of the root causes of these kinds of crimes
against because an educated mind is not only an asset to society but it can make its own life
worth living. Various sociological and physiological studies reveal that an educated and
economically sound person has more confidence level as compared to others. As Mary
Wollstonecraft in her ‘ A Vindication of the Rights of Women’ said, ‘the neglected education
of my fellow-creatures is the grand source of the misery I deplore.’ Hence, the issue needs
out-of-the-box thinking and major surgical operation. All this requires foresightedness of the
Judiciary and Political will. Mere tinkering with the problem of female illiteracy would not
do.
4. ENDNOTES
* M.A. (Pol.Sc.), LL.M., Ph.D., Lecturer-in-Law, University Institute of Laws, Panjab
University Regional Centre, Extension Library, Civil Lines, Ludhiana. Email:
[email protected]
* LL.M, Ph.D, Senior Lecturer-in-Law, University Institute of Laws, Panjab University
Regional
Centre,
Extension
Library,
Civil
Lines,
Ludhiana.
Email:
[email protected]
1Bajpai Asha (2006) Child Rights in India: Law Policy and Practice (New Delhi: Oxford
University Press).
2 Women’s Issues Then and Now: A Feminist Overview of the Past 2 centuries, retrieved on
9th July 07, for more information visit:
<http://www.cnrl.vtescas.edu/uirich/feminist/educatoins.html/>
3Wallstonecraft Mary (April 27, 1759-Sep 10, 1797) was an English writer. Her early
writings ‘Thoughts on the Education of Daughters’ (1787) foreshadowed her matrix work on
the place of women in society ‘A Vindication of the Rights of Women’ (1792), whose core is
a plea for equality in the education of men and women. The Vindication is widely regarded as
the founding document of modern feminism. For more information see Britannica Ready
Reference Encyclopedia (2004) Vol. 10 (New Delhi: Encyclopedia Britannica (India) Pvt.
Ltd).
4Lewis Johnson Jones What Rights? – The Arguments of Wollstonecraft in a Vindication of
the Right of Women retrieved on 9thJuly 07,
http://womenshistory.about.com/library/weekly/aa083099a.htm
5The assembly held at Seneca Falls, New York that launched the US women suffrage
movement. Initiated by “Elizabeth Lady Stanton” (who lived in Seneca Falls) and Lucretia
Mott the meeting was attended by more than 200 people, including 40 men. The group passed
the declaration of sentiments a list of grievances and demands modeled on the declaration of
independence that called on women to organize and petition for their rights. A controversial
demand for the right to vote passed by a narrow margin. For more information see Britannica
Ready’s Reference Encyclopedia (2004) Vol. 9 (New Delhi: Encyclopedia Britannica (India)
Pvt. Ltd).
6Blackwell Elizabeth(Feb 3, 1821- May 31, 1910), British born US physician. Medical
Schools rejected the applications until she was accepted at the Geneva Medical (later Hobart)
college in 1847. She is also founder of London School of medicine for women. For more
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information see Britannica Ready Reference Encyclopedia (2004) Vol.2 (New Delhi:
Encyclopedia Britannica (India) Pvt. Ltd.).
7 Women’s Issues Then and Now: A Feminist Overview of the Past 2 centuries, retrieved on
9th July 07, for more information visit:
<http://www.cnrl.vtescas.edu/uirich/feminist/educatoins.html/>
8 UN on Education: Universal Declaration of Human Rights (1948), International Covenant
on Economic, Social and Cultural Rights (1966), Convention on the Rights of Child (1989),
World Declaration on Education for All (1990), Jomtien Declaration (1990), World
Education Forum Dakar Senegal (2000), Education for all Assessment (2000).
9 Jain Devika (2006) Women Development and United Nations (Hyderabad: Orient
Longman).
10 League of Nations on Female Education: Women at Paris Peace Conference (1919),
International Commission on Intellectual Co-operation, International Bureau of Education
(1926), Committee of Experts on the Legal Status of Women (1937).
11 Right of Children to Free and Compulsory Education Act, 2009, Section 2(f), ‘elementary
education means the education from first class to eighth class.’< /font>
12 1st World Conference on Women, Mexico (1975) retrieved on 11th August 2007, for more
information visit: http://www.choike.org/nuevo_eng/informes/1453.html
13 2nd World Conference on Women, Copenhagen (1980) retrieved on 11th August 2007, for
more information visit: http://www.choike.org/nuevo_eng/informes/1454.html/
14 The Strategic Objectives fixed was that the year 2000, provide universal access to basic
education and ensure completion of primary education by at least 80% of primary school age
children, close the gender gap in primary and secondary school education by the year 2005,
provide universal primary education in all countries before the year 2015. The objectives are
summed up into various categories. They are: To reduce the female illiteracy rate to at least
half its 1990 level, with emphasis on rural women, migrant, refugee and internally displaced
women and women with disabilities; Provide universal access to and seek to ensure gender
equality in the completion of primary education for girls by year 2000; Eliminate the gender
gap in basic and functional literacy, as recommended in the World Declaration on Education
for All; Another strategic objective lists down actions to promote life- long education and
training for girls and women. It draws the action to be taken by the governments, educational
institutions, and communities. These are as follows: Ensure the availability of a broad range
of educational and training programmes that lead to ongoing acquisition by women and girls
of the knowledge and skills required for living in, contributing to and benefiting from their
communities and nations; Provide support for child care and other services to enable mothers
to continue their schoolings; Create flexible education, training and retraining programmes
for life-long learning that facilitate transitions between women’s activities at all stages of
their lives.
15 Jain Devika (2006) Women Development and United Nations (Hyderabad: Orient
Longman).
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16 UNICEF Suggestions: Recruiting and training teachers locally and providing schools
within the villages are factors which repeatedly characterize successful programmes. The
reality for many families is that their children need to help in household and farming chores
as a matter of survival. When cultural practices place the bulk of this burden on girls, it is
critical that educational activities do not clash with these responsibilities. For many girls have
remained out of school for the reason.; For very poor families, this means that education must
be free, including no hidden costs, such as uniforms, shoes, or examination fees. Costs of
girls schooling also need to be lowered by providing scholarships and day- care facilities for
siblings and by adjusting school timings to fit schedules of rural children; Special efforts to
recruit local females and train them locally not only improve the enrolment levels of girls but
also provide important role models for them. While designing educational projects and
programmes, attention must be paid to target girls as the main beneficiary of programmes.
17 Chatterjee Mohini (2005) Women’s Human Rights (Jaipur: Aavishkar Publishers).
18 Constitution of India, Article 15(3).
19 Jain M.P (2006) Indian Constitutional Law (New Delhi: Wadhwa and Company Nagpur) .
20 Asha Bajpai, 2006, Child Rights in India: Law Policy and Practice, Oxford University
Press, New Delhi.
21 National Sample Survey Office, Ministry of Statistics and Programme Implementation,
Government of India, Report No. 532, ‘Education in India, 2007-08: Participation and
Expenditure’ (19th May, 2010) retrieved on 11th November 2010, for more information visit:
http://www.press_note_NSS_Report_no_532_19may10.pdf
22 The Directive Principles of State Policy are guidelines to the central and state
governments of India, to be kept in mind while framing laws and policies. These provisions,
contained in Part IV of the Constitution of India, are not enforceable by any court, but the
principles laid down therein are considered fundamental in the governance of the country,
making it the duty of the State to apply these principles in making laws to establish a just
society in the country. The principles have been inspired by the Directive Principles given in
the Constitution of Ireland and also by the principles of Gandhism; and relate to social
justice, economic welfare, foreign policy, and legal and administrative matters. Directive
Principles are classified under the following categories: Gandhian, economic and socialistic,
political and administrative, justice and legal, environmental, protection of monuments and
peace and security.
23 International Covenant on Civil and Political Rights (1966), International Covenant on
Economic, Social and Cultural Rights (1966).
24 A.V. Chandel v. Delhi University, AIR 1978 Del 308, at 311.
25 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
26 A.V. Chandel v. Delhi University, AIR 1978 Del 308, at 311.
27 P.A. Inamdar v. State of Maharastra, 2005 6 SCC 537.
28 Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
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29 J.P. Unnikrishnan and others v. State of Andhra Pradesh, AIR 1993 SC 2178.
30 University of Delhi v. Ram Nath, AIR 1963 SC 1873.
31 J.P. Unnikrishnan and others v. State of Andhra Pradesh, AIR 1993 SC 2178.
32 Oliver Brown v. Board of Eduction of Topeka, (US Supreme Court Reports (1953) (8 Law
Ed 873), as quoted in J.P. Unnikrishnan and others v. State of Andhra Pradesh, AIR 1993 SC
2178.
33 M.Veera Siva Nagi Reddy v. Osmania University, Hyderabad, 1997(3) SLR (Andra
Pradesh) 87.
34 Anand A.S (2008) Justice for Women, Concerns and Expressions (Delhi: Universal Law
Publishing Company).
35 Pillai K.N Chandrasekharan (2006) Annual Survey on Indian Law: 2005 (New Delhi
Indian Law Institute).
36 Reports of the Law Commission of India (2007) Vol. No. 14 (Delhi: Universal Law
Publication Company).
37 Article 21-A, the State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the state shall by law, determine. Article 45,
The State shall endeavour to provide early childhood care and education to children below
the age of six year. Article 51A(k) It shall be the duty of every citizen of India, who is a
parent or guardian to provide opportunities for education to his child or, as the case may be,
ward between the age of six and fourteen years.
38 J.P. Unnikrishnan and others v. State of Andhra Pradesh, AIR 1993 SC 2178.
39 Section 2(h), free education means exemption from the obligation to pay tuition fee or
other charges which schools usually collects from pupils in the schools. It extends to
provision of free text-books, note-books and other study materials and may include health
care and nutrition where the appropriate Government so declares by rules under the Act.
40 CHANDRASEKHAR S., A. AND MUKHOPADHYAY (SEPT. 2-8, 2006) ‘PRIMARY EDUCATION AS A
FUNDAMENTAL RIGHT: COST IMPLICATIONS’, ECONOMIC AND POLITICAL WEEKLY, VOL.XLI
NO.35.
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